March 3, 2011

©2011 jbjd

Add syndicated columnist Cal Thomas to the ever growing list of disingenuous town criers who, in the wake of President Obama’s decision the Executive branch will refrain from defending against court challenges to DoMA, are shouting a proverbial ‘the sky is falling’ warning to a captive audience ignorantly unaware in this instance, the sky is not only intact but also precisely in the place Congress (the Legislative branch of government) intended it to be.

Here are some snippets from Mr. Thomas’s latest tirade against Obama, “Obama’s duty is to enforce the law”:

President Obama has said his view of same-sex “marriage” is “evolving.” Apparently he thinks that the law should be based on a kind of Darwinian jurisprudence which allows it to “evolve” and become whatever the ruling politicians at a given moment say it is (or isn’t).How else to explain the decision by the president and his attorney general, Eric Holder, not to defend the Defense of Marriage Act, signed into law by President Clinton in 1996?

Now, you have to be real careful reading this double slight of hand.  See, Mr. Thomas begins this article by telling readers right there in the title, Obama has a duty to “enforce” laws.  But here, in the meat of his offering, he changes the word “enforce” to “defend,” correctly stating in simplest terms, Obama has decided not to defend against (court) challenges to the law (filed by aggrieved parties).  In other words, the fed will still define marriage as between same sex partners, for example, when it comes to doling out spousal benefits.

Then, he hurdles a leap and a bound by pointing readers to the false narrative, Obama based his decision that ‘this law means what he says it means’ because his ‘views on gay marriage are evolving.’  On what documentary basis did Mr. Thomas conjure up this ’cause’ and ‘effect’?

Given his recent history, it appears far more likely, Mr. Obama still opposes equal rights when it comes to sexual orientation but is just exercising this tactic because he is gearing up for the 2012 election and, having alienated a good percentage of his gay base, was ordered by his handlers to take steps to herd them back into the D fold.

For example, it took 2 (two) years to even sign into law a bill that indicates an intention to repeal DADT, notwithstanding strong bi-partisan support for the repeal from all political comers, including both  military brass, and military chaplains. Anyway, DADT is still the law of the land; and Obama has not ordered the DoJ to refrain from defending against court challenges to that law.

Despite the big congressional vote in December to repeal DADT, the law is actually still in effect. The repeal legislation doesn’t stop its implementation until 60 days after top Pentagon brass say they’re ready — and the brass say they’re still working on it, and it could take a few more months.

“The appeal is still alive and kicking because Don’t Ask Don’t Tell is still the law of the land,” said Dan Woods, a lawyer representing the Log Cabin Republicans.

“On behalf of our client, we suggested to the government that we would be willing to stay the appeal on one condition: that the government agree not to discharge any service member under Don’t Ask Don’t Tell in the meantime,” Woods told HuffPost. “And the government refused.”

Woods said the Pentagon “is continuing to investigate and process discharges under Don’t Ask Don’t Tell.”

The DOJ lawyers filed their brief Friday even though President Obama, speaking directly to gay service members when he signed the repeal legislation, hailed that December day as marking “the end of a particular struggle that has lasted almost two decades.”

Yep, Obama failed to rescind DADT even as he answered a question regarding his views on same sex marriage by mentioning he had ‘evolving’ views.

In December, the president scored a major legislative victory (with the help of Sens. Joe Lieberman, I-Conn., Susan Collins, R-Maine, and Harry Reid, D-Nev.) in signing the repeal of the “don’t ask, don’t tell” policy, ending the practice of banning gays and lesbians from serving openly in the military.

That was quickly followed by this widely noted answer to a question about same-sex marriage at his year-end news conference in December.

“[M]y feelings about this are constantly evolving. I struggle with this. I have friends, I have people who work for me, who are in powerful, strong, long-lasting gay or lesbian unions. And they are extraordinary people, and this is something that means a lot to them and they care deeply about,” President Obama said.

“At this point, what I’ve said is, is that my baseline is a strong civil union that provides them the protections and the legal rights that married couples have. And I think — and I think that’s the right thing to do. But I recognize that from their perspective it is not enough, and I think is something that we’re going to continue to debate and I personally am going to continue to wrestle with going forward,” he added.

(Note that PBS gets it wrong, too, giving credit to Obama for ending DADT when the bill he signed into law only states an ‘intention’ to end the policy.  As I said earlier, the military is still enforcing the current DADT policy and the DoJ is still defending the military’s use of this policy in court.)

Then, Mr. Thomas gets really dishonest.
Imagine the reaction from the Left had George W. Bush announced his administration would no longer defend Roe v. Wade because he thought it unconstitutional and it would eventually be overturned by the Supreme Court.

As regular “jbjd” readers now know,  President Bush nominated to the SCOTUS as Chief Justice, the former Solicitor General who, under his father, President George H. W. Bush, had not only refused to defend against a court challenge to an existing government policy, but also argued against the government policy in federal court, claiming it violated the Equal Protection clause of the 14th Amendment.  See FALSE ADVERTISING.  And he had every right to do so.  Id. Not only that, in 2002, President Bush signed into law legislation which created a formal mechanism for reporting to Congress those cases in which the Executive determined to refrain from defending or enforcing any law.

This is from my Reply to a Comment by markcon, on FALSE ADVERTISING.

markcon, you (and millions of others like you) are being played. In acknowledgment that, from time to time, the Executive decides to refrain from defending (or enforcing or administering) what it considers are unConstitutional laws, Congress passed this law requiring the Executive to report its decision(s).

§ 530D. Report on enforcement of laws
(a) Report.—
(1) In general.— The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice—
(A) establishes or implements a formal or informal policy to refrain—
(i) from enforcing, applying, or administering any provision of any Federal statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional; or
(ii) within any judicial jurisdiction of or within the United States, from adhering to, enforcing, applying, or complying with, any standing rule of decision (binding upon courts of, or inferior to those of, that jurisdiction) established by a final decision of any court of, or superior to those of, that jurisdiction, respecting the interpretation, construction, or application of the Constitution, any statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer;
(B) determines—
(i) to contest affirmatively, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law; or
(ii) to refrain (on the grounds that the provision is unconstitutional) from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law, or not to appeal or request review of any judicial, administrative, or other determination adversely affecting the constitutionality of any such provision; or
(C) approves (other than in circumstances in which a report is submitted to the Joint Committee on Taxation, pursuant to section 6405 of the Internal Revenue Code of 1986) the settlement or compromise (other than in bankruptcy) of any claim, suit, or other action—
(i) against the United States (including any agency or instrumentality thereof) for a sum that exceeds, or is likely to exceed, $2,000,000, excluding prejudgment interest; or
(ii) by the United States (including any agency or instrumentality thereof) pursuant to an agreement, consent decree, or order (or pursuant to any modification of an agreement, consent decree, or order) that provides injunctive or other nonmonetary relief that exceeds, or is likely to exceed, 3 years in duration: Provided, That for purposes of this clause, the term “injunctive or other nonmonetary relief” shall not be understood to include the following, where the same are a matter of public record—
(I) debarments, suspensions, or other exclusions from Government contracts or grants;
(II) mere reporting requirements or agreements (including sanctions for failure to report);
(III) requirements or agreements merely to comply with statutes or regulations;
(IV) requirements or agreements to surrender professional licenses or to cease the practice of professions, occupations, or industries;
(V) any criminal sentence or any requirements or agreements to perform community service, to serve probation, or to participate in supervised release from detention, confinement, or prison; or
(VI) agreements to cooperate with the government in investigations or prosecutions (whether or not the agreement is a matter of public record).
(2) Submission of report to the congress.— For the purposes of paragraph (1), a report shall be considered to be submitted to the Congress if the report is submitted to—
(A) the majority leader and minority leader of the Senate;
(B) the Speaker, majority leader, and minority leader of the House of Representatives;
(C) the chairman and ranking minority member of the Committee on the Judiciary of the House of Representatives and the chairman and ranking minority member of the Committee on the Judiciary of the Senate; and
(D) the Senate Legal Counsel and the General Counsel of the House of Representatives.
(b) Deadline.— A report shall be submitted—
(1) under subsection (a)(1)(A), not later than 30 days after the establishment or implementation of each policy;
(2) under subsection (a)(1)(B), within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination; and
(3) under subsection (a)(1)(C), not later than 30 days after the conclusion of each fiscal-year quarter, with respect to all approvals occurring in such quarter.
(c) Contents.— A report required by subsection (a) shall—
(1) specify the date of the establishment or implementation of the policy described in subsection (a)(1)(A), of the making of the determination described in subsection (a)(1)(B), or of each approval described in subsection (a)(1)(C);
(2) include a complete and detailed statement of the relevant issues and background (including a complete and detailed statement of the reasons for the policy or determination, and the identity of the officer responsible for establishing or implementing such policy, making such determination, or approving such settlement or compromise), except that—
(A) such details may be omitted as may be absolutely necessary to prevent improper disclosure of national-security- or classified information, of any information subject to the deliberative-process-, executive-, attorney-work-product-, or attorney-client privileges, or of any information the disclosure of which is prohibited by section 6103 of the Internal Revenue Code of 1986, or other law or any court order if the fact of each such omission (and the precise ground or grounds therefor) is clearly noted in the statement: Provided, That this subparagraph shall not be construed to deny to the Congress (including any House, Committee, or agency thereof) any such omitted details (or related information) that it lawfully may seek, subsequent to the submission of the report; and
(B) the requirements of this paragraph shall be deemed satisfied—
(i) in the case of an approval described in subsection (a)(1)(C)(i), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the legal and factual basis or bases for the settlement or compromise (if not apparent on the face of documents provided); and
(ii) in the case of an approval described in subsection (a)(1)(C)(ii), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the injunctive or other nonmonetary relief (if not apparent on the face of documents provided); and
(3) in the case of a determination described in subsection (a)(1)(B) or an approval described in subsection (a)(1)(C), indicate the nature, tribunal, identifying information, and status of the proceeding, suit, or action.
(d) Declaration.— In the case of a determination described in subsection (a)(1)(B), the representative of the United States participating in the proceeding shall make a clear declaration in the proceeding that any position expressed as to the constitutionality of the provision involved is the position of the executive branch of the Federal Government (or, as applicable, of the President or of any executive agency or military department).
(e) Applicability to the President and to Executive Agencies and Military Departments.— The reporting, declaration, and other provisions of this section relating to the Attorney General and other officers of the Department of Justice shall apply to the President (but only with respect to the promulgation of any unclassified Executive order or similar memorandum or order), to the head of each executive agency or military department (as defined, respectively, in sections 105 and 102 of title 5, United States Code) that establishes or implements a policy described in subsection (a)(1)(A) or is authorized to conduct litigation, and to the officers of such executive agency.—D000-.html

(FYI, Congress passed this ‘reporting’ law back in 2002. (Following this link and its successor, above; you can see, first the text appears in the numbered “public law” and then, the law is codified into the appropriate spot in the U.S. Code.)


I zealously try to post information that will inform but not titillate.  Then again, with all due deference to Mr. Thomas, I am only a blogger and not a syndicated columnist.


February 26, 2011

©2011 jbjd

Based on the dozens of story lines featured on the subject on the site, DRUDGE REPORT clearly knows, for years now, citizens convinced Barack Obama is not a NBC crave his impeachment.  (Actually, most have called for ‘something’ other than impeachment that will get him out of office, mistakenly believing, assuming he is Constitutionally ineligible to be President, he was unlawfully elected, anyway and, therefore, cannot be removed as the CiC through the only process prescribed in the Constitution.)  So, one could naturally assume, Mr. Drudge printed for their benefit these banner headlines, in red, replete with dome light, announcing, “‘ Gingrich gives Obama ‘impeachment’ warning’.”  Indeed, the link to the Newsmax article died through overuse.  Even I, chuckling as I clicked, knowing, had Gingrich mentioned “impeachment” in the context of “ineligibility” Drudge would have said so on his site; nonetheless joined the presumably millions of others, like lemmings to the sea, to confirm I had been intentionally misdirected.

I had confirmed on other sites, Gingrich’s use of the word ‘impeachment’ was in no way related to Obama’s Constitutional eligibility for office – no surprise there – but to instructions to the DoJ to decline to actively defend against challenges to the DoMA. Then, I got through to Newsmax.  Here was their headline:

Gingrich: If Palin

Took Obama Actions,

There Would Be Calls

for Impeachment

Gingrich: If Palin Took Obama Actions, There Would Be Calls for Impeachment
Disingenuously clarifying, he wasn’t suggesting Obama should be impeached, anyway, Gingrich complained that when it comes to the conduct of the left versus the right, there is a lot of hypocrisy.  Okay; but then, he went ‘a bridge too far.’

Gingrich slammed Obama for his decision, telling Newsmax that he is not a “one-person Supreme Court” and his decision sets a “very dangerous precedent” that must not be allowed to stand…. Gingrich adds: “I don’t think these guys set out to create a constitutional crisis. I think they set out to pay off their allies in the gay community and to do something that they thought was clever. (Emphasis added.) I think they didn’t understand the implication that having a president personally suspend a law is clearly unconstitutional.”

See, here’s the problem with hyperbole.  It is so easily verifiable as untrue.  “Very dangerous precedent” (as in, happening for the first time)?  And, heaping insult onto injury, characterizing the decision not to spend more money defending against a law some federal courts have already ruled is unconstitutional (Gill et al v. Office of Personnel Management et al) as deciding to”personally suspend a law”?

Gingrich again exposes his ethical vacuity by aiming this garbage to gullible receivers.  Of course, I only characterize him as the scoundrel he is in this instance, because I can prove it.

For example, I find absolutely no evidence in the public record that U.S. Representative Gingrich mentioned the word impeachment in relation to the decision of President George H. W. Bush, in 1992 to refrain from defending an FCC policy “to give minorities an edge when it came to the awarding of radio and television broadcast licenses.” (The FCC’s policy was adopted at the urging of Congress, and the solicitor general’s office usually defends agencies such as the FCC against legal challenges.” Id.)

Ha, when the case finally reached the SCOTUS – Metro Broadcasting v. FCC –  the U.S., on the legal advice of (Acting) Solicitor General John Roberts, actually argued against the government policy, claiming it violated the Equal Protection clause of the 14th Amendment. Id. The SCOTUS disagreed.  (Mr. Roberts was later nominated to the SCOTUS by President George W. Bush.)

But neither refraining from prosecuting a challenge to an existing law nor arguing against an existing law is illegal.

Presidential Authority to Decline to Execute Unconstitutional Statutes,” drafted in 1994, isa memorandum to the Honorable Abner J. Mikva, Counsel to the President (George H. W. Bush), written by Assistant Attorney General Walter Dellinger,  discussing the President’s constitutional authority to decline to execute unconstitutional statutes.  Here are just a few findings and conclusions:

The President should presume that enactments are constitutional. There will be some occasions, however, when a statute appears to conflict with the Constitution. In such cases, the President can and should exercise his independent judgment to determine whether the statute is constitutional. In reaching a conclusion, the President should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation. Where possible, the President should construe provisions to avoid constitutional problems.The Supreme Court plays a special role in resolving disputes about the constitutionality of enactments. As a general matter, if the President believes that the Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue. If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.

“…we do not believe that a President is limited to choosing between vetoing, for example, the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision.”

Summing up, Gingrich did not propose impeaching President George H. W. Bush either for refusing to defend against a race-based preference policy in awarding broadcast licenses or for opposing the existing policy in the U.S. arguments to the high court.  And based on his assumption Obama’s conduct is wedded in support for equal rights for gays and lesbians; he suggests the left would call for impeachment if President Palin ‘unilaterally’ ordered the DoJ to refrain from enforcing a law to which she was philosophically opposed. 

But as history shows, Presidents do this all the time. And Dr. Gingrich (Ph.D., History) knows this.


The DRUDGE REPORT proudly boasts its daily hits are in the millions – “VISITS TO DRUDGE 02/25/11, 031,840,693 IN PAST 24 HOURS" – presumably netting significant commercial revenues.  Imagine how much smarter Mr. Drudge (and his colleagues) could leave the body politic if only he would spend some of that money educating his readers instead of just titillating us.  

I haven’t reached 1,000,000 hits since I started this blog in August 2008!  Yet I spent hours putting together this post, all by myself, for free.


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